Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s burning question: In a disciplinary investigation, can the lead investigator be the complainant on a case? I was under the impression that the investigator should not also be the complainant.
Answer: The general rule is that neither the victim nor the complainant to an alleged disciplinary infraction should be assigned to investigate a disciplinary complaint. The reason for that should be obvious, but someone who was the victim of an infraction, or even a witness to what occurred, would inevitably have to evaluate their own credibility as part of the investigation. It is not reasonable to expect anyone to be able to objectively evaluate their own credibility. It may even cause an investigation to be challenged as being biased and unfair so as to violate the basic tenants of due process and/or just cause.
However, not call complainants will be witnesses in an investigation. For example, if someone (let’s say a civilian) reports to a fire officer that a firefighter engaged in misconduct (for example, spoke harshly to a homeless person while on a run), but refuses to file a formal complaint, the officer who receives such a complaint and puts it in writing, would technically be the complainant, but he/she is not the victim nor a witness in the investigation. That officer could be assigned to conduct an investigation despite being the complainant.
To summarize, where the complainant is the victim of an infraction, or a witness to an infraction, they should not be allowed to investigate. However, when the investigator is a complainant in name only (is not a victim and not a witness) there is no problem with them being the investigator (assuming they are not otherwise conflicted).
